SANTOSH BIND Vs. STATE OF U.P.

JUDGEMENT

(1.) Since both the aforementioned criminal appeals have been filed against a judgment and order dated 20.7.2013 passed by the Additional Sessions Judge, Court No. 6, Allahabad convicting and sentencing the appellants in ST No. 213 of 2013, the prayer for bail in both the criminal appeals is being heard and disposed of by means of this common order. We have heard learned Counsel for the appellants in these connected appeals as well as learned Additional Government Advocate for the State.

(2.) The contention of the appellants' Counsel is that the prosecution story is rather improbable and it is very difficult to stomach the prosecution's claim that the victim girl could have been kidnapped against her will from the railway station which is a very crowded place and it is even more incredible that for a long period of time victim Km. Surabhi, could have been wrongfully confined and continuously raped during the whole period of several weeks by four persons without a word of protest being raised by her, especially in view of the admitted prosecution story that she was also carried and taken to different places from Daraganj in Allahabad to the house of accused Santosh Bind @ Kallu which is in a distant town Handia during the period of her alleged confinement. It has also been submitted that the testimony of the victim is not wholly reliable as two of the co-accused, who were named by her at the time of giving statement under section 164 Cr.P.C., have been completely exonerated by her in the Court, as a result whereof both of them have been acquitted by the Trial Court. Further submission is that the medical examination also does not corroborate the story of gang rape. It was also argued that the allegation of having communicated the names of the appellants, soon after kidnapping, to her parents on mobile phone gets falsified by the contents of the information which was given to the police at the first instance in which the first informant did not nominate anybody by name and which was just in the nature of a 'gumshudgi report'. The argument is that the victim appears to be a girl of easy virtue and must have gone away on her own accord and just in order to bargain and blackmail, the accused-appellants have been falsely implicated in the case.

(3.) Per contra, learned A.G.A. has vehemently opposed the prayer for bail and has submitted that the entire argument raised on behalf of the accused-appellants with regard to the absence of resistance or protest made by the victim is well explained by the victim in her statement wherein she had stated that appellant-Vikash Keshri had given the threat that in case of raising her voice she would be hacked into pieces and be thrown in river Ganga. Appellant-Santosh Bind and the other two companions of him had also threatened her with life. Further submission is that even if, for the sake argument alone, it is presumed that the lack of resistance or the absence of protest was because of her consent in the coitus, then too the same shall be of no avail to help the appellants as she has been found to be a minor girl of about 16 years by radiological examination, and therefore, as per the definition of the offence provided in the Penal Code, such consent shall be meaningless and the offence of rape shall be constituted inspite of the same. Emphasis has also been laid on the statement of P.W.-10 who, being the Principal of Sanatan Dharm Prathamik Pathshala, has proved the victim's date of birth to be 24.11.1996 on the basis of the original records of the school which were brought before the Court and according to which she was a minor girl below 16 years in age. Attention has also been drawn on the latest amendment brought in the legislation whereby the age of minority or the age of consent with reference to the definition of rape given in the Penal Code has been raised from 16 to 18 years. According to learned A.G.A. the new amendment demonstrates the legislative intent with regard to the insignificance of consent by the minor girls in such matters. The argument is that it is a case of gang rape where a minor girl was deceitfully duped to fall in the trap of the accused-appellants who mischieviously exploited their previous acquaintance with the girl and subjected her to this egregious crime. Whatever might have been the reason of absolving the two co-accused but so far as the involvement of present appellants is concerned, there is no inconsistency of version about their participation in the crime from the beginning to the end. According to learned A.G.A., if the victim was subjected to illicit intercourse repeatedly for a long time at a stretch (as has been in the present case) and the medical examination takes place several weeks after the first coitus, then the medical findings would be quite different from the cases where the medical examination takes place soon after the first act of rape takes place, and therefore, the medical examination cannot be said to be in contradiction with the prosecution story. In fact, according to learned A.G.A., the medical evidence supports the prosecution allegation that she was in fact subjected to repeated intercourse against her will by a number of persons for a long period of time running over weeks.